03 Mar Paterson digs in on 18C reform
Chris Merritt — The Australian — 3 March, 2017
For supporters of freedom of speech, James Paterson is fast emerging as the new pin-up boy. As a Liberal member of federal parliament’s joint committee on human rights, Senator Paterson led the charge for significant reform of section 18C of the Racial Discrimination Act.
That committee’s report, which was released this week, shows he was unable to assemble a majority to back reform.
But the committee did call for procedural changes at the organisation that administers this law: the Australian Human Rights Commission.
Senator Paterson sees that as a starting point and he has no intention of abandoning the push for substantive change to the law itself.
“The government has today everything it needs to act on 18C,” he said.
“It has specific recommendations on how to improve the Human Rights Commission processes and it also has options on how to fix 18C itself. And I believe the government must proceed with both of those.”
He believes there is a realistic path to reform that could secure parliamentary support while also ensuring there would be no repeat of the notorious recent cases that have re-enlivened the push for change.
At the moment, section 18C makes it unlawful to do anything that makes others feel offended, insulted, humiliated or intimidated because of their race, colour or national or ethic background.
Unlike the law of defamation, liability under 18C is not determined with reference to community standards. Instead, those who adhere to community standards can be branded racists under section 18C if judges find they have objectively not complied with the standards of complainants.
This provision, which some view as skewed in favour of plaintiffs, was behind a complaint that had briefly accused The Australian’s cartoonist, Bill Leak, of racial hatred until the complainant changed her mind.
It was also behind failed litigation against students at Queensland University of Technology who had objected to being excluded on racial grounds from an indigenous-only computer room.
“The best path forward, which will substantially reduce the risk of future QUT or Bill Leak cases and which can pass the parliament, is a bill that amends 18C in a substantial way,” he said.
He wants that bill to remove the words “offend, insult and humiliate” and replace them with the term “harass”.
At the same time, he favours changing the test for liability so judges are required to apply community standards, rather than having regard to the objective standards of those who complain.
He also wants the defences in section 18D widened so they go beyond the current “reasonable and good faith” test.
He wants 18D to include a truth defence along the lines of that found in the law of defamation. He said the evidence provided to the committee indicated that these changes would ensure that 18C could better target the kind of racist abuse that nobody wanted to see, while simultaneously increasing freedom of speech.
In response to those who believe the general community has no interest in reform of 18C, he says this: “The QUT case shows that anyone with a Facebook account, who expresses their opinions, could be caught up by this law.
“It could take them 3½ years to clear their name and in the meantime their reputation could be smeared and hundreds of thousands of dollars in legal fees could be racked up,” Senator Paterson said.
This article was originally published in The Australian.